The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff Derek Todd, who is proceeding without counsel, filed this action on April 18, 2013, alleging claims under 42 U.S.C. §§ 1983 and 1985 against defendants Lisa Rapalyea, several officers of the Davis Police Department, and several attorneys at the Yolo County District Attorney's Office, based on their alleged conspiracy to violate plaintiff's and his son's rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (Dkt. No. 1.)*fn1 Plaintiff also filed an application to proceed without prepayment of fees, or in forma pauperis. (Dkt. No. 3).
Plaintiff's application in support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. For the reasons discussed below, the court finds that plaintiff's action is duplicative of a previously-filed action and in any event fails to state a claim on which relief may be granted. Accordingly, the court recommends that the action be dismissed with prejudice.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Ordinarily, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).
In this case, plaintiff's 50-page complaint, with an additional 421 pages of exhibits, alleges that defendant Lisa Rapalyea, a graduate student who lived in the same apartment complex as plaintiff, initially started tutoring plaintiff's teenage son in the Fall of 2009 without plaintiff's knowledge. Although plaintiff eventually agreed to a tutoring arrangement in February 2010, he later withdrew his consent in June 2010, when he purportedly found defendant Rapalyea massaging his son's back, with his clothes on, during a tutoring session. When defendant Rapalyea refused to sign a letter drafted by plaintiff, demanding that she stay away from his son, plaintiff contacted the Davis Police Department to have defendant Rapalyea investigated and prosecuted for several crimes, including sexual assault of a child and stalking. Plaintiff states that defendant Rapalyea never obtained his consent to touch, massage, or perform physical therapy on his son. (See generally Dkt. No. 1.)
Plaintiff's complaint and numerous police reports, attached to and referenced by plaintiff in his complaint, show that the Davis Police Department interviewed defendant Rapalyea and plaintiff's son.*fn2 Defendant Rapalya stated that she had only touched plaintiff's son during a tutoring session when she inspected his knee upon his complaints of pain, given that she was a certified athletic trainer. Defendant Rapalya also informed the Davis Police Department that the only other time she had touched plaintiff's son was when he had gotten a cramp in his hamstring at the apartment pool, and she had helped him stretch it out with many people present. Both defendant Rapalya and plaintiff's son denied that the massage incident, which plaintiff allegedly witnessed, had occurred. (Dkt. No. 1 at 12, 18-19; Dkt. No. 1-1 at 1-8, Ex. F.)
Plaintiff asserts that one of the Davis Police Department officers, defendant Paul Doroshov, initially indicated to plaintiff orally that he believed that defendant Rapalyea had committed sexual harassment or sexual assault. However, after discussions with the Yolo County District Attorney's office, the police officers' reports ultimately stated that no crime had occurred. (Dkt. No. 1 at 12-13.)
A letter from the Yolo County District Attorney's office, attached to and referenced in plaintiff's complaint, indicates that plaintiff's complaints were further reviewed by several prosecutors in that office, but that they ultimately concluded that there was insufficient evidence to show beyond a reasonable doubt that a crime was committed. (Dkt. No. 1 at 14; Dkt. No. 1-1 at 15-16, Ex. H.) One of the prosecutors, defendant Sean King, also noted, as plaintiff acknowledges in his complaint, that defendant Rapalyea had a restraining order against plaintiff, which the prosecutor opined would create an additional credibility issue for a jury. (Dkt. No. 1 at 13, 22; Dkt. No. 1-1 at 10, Ex. G.) Despite plaintiff's continued subsequent requests, the Davis Police Department declined to re-open the investigation. (Dkt. No. 1-3 at 155-56, Ex. Q.)
Based on these allegations, plaintiff claims that defendant Lisa Rapalyea conspired with the other defendants, the Davis Police Department officers and prosecutors from the Yolo County District Attorney's office, to deny protective services to plaintiff and his son in violation of their Fourteenth Amendment right to equal protection when the other defendants did not press charges against defendant Rapalyea for allegedly stalking and sexually assaulting plaintiff's son. Plaintiff further alleges that defendant Rapalyea appeared at plaintiff's child custody hearing, and that defendant Rapalyea and his son's mother lied to the police to have plaintiff unjustly arrested and convicted of assault against defendant Rapalyea. (Dkt. No. 1 at 9, 11, 38.)
As an initial matter, a review of the court's records reveals that the above-mentioned allegations are virtually identical to those contained in plaintiff's complaint filed in this court on April 3, 2012, in Derek Todd v. Keirith Briesenick, et al., 2:12-cv-856-MCE-GGH, Dkt. No. 1. That case was dismissed with prejudice on July 9, 2012. (Id., Dkt. Nos. 3, 5, 6.) After plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals, the district judge revoked plaintiff's in forma pauperis status and certified, pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure, that the appeal was not taken in good faith, noting that the action was frivolous. (Id., Dkt. Nos. 7, 11.) The Ninth Circuit subsequently dismissed the appeal. (Id., Dkt. No. 12.)
Although the earlier case involved additional claims and also named the Davis Police Department and Yolo County as entity defendants, and even though plaintiff named additional Davis Police Department officers and individual prosecutors from the Yolo County District Attorney's office as defendants in the instant action, both actions are rooted in the same nexus of operative facts and involve Equal Protection Clause claims under 42 U.S.C. § 1983. Large portions of the complaint in the earlier case were simply copied and pasted into the complaint in this case. Thus, the action is duplicative of plaintiff's previously-filed action, at least with respect to defendants Lisa Rapalyea and officers Keirith Briesenick and Paul Doroshov, who are named as defendants and/or "real parties in interest" in both actions. Furthermore, if plaintiff truly believed that he had a legal basis to assert claims against additional defendants based on the facts alleged, the proper course of action would have been to seek appropriate relief in the prior action, such as by a motion to set aside the judgment and amend his complaint -- not to file a new action.
In any event, plaintiff's complaint in this case also fails to state a claim for a violation of the Equal Protection Clause under 42 U.S.C. § 1983 for the same reasons articulated in the findings and recommendations, as adopted by the district judge, in the ...